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House Speaker Nancy Pelosi of Calif., accompanied by Rep. Joaquin Castro, D-Texas, left, and others, speaks about a resolution to block President Donald Trump's emergency border security declaration on Capitol Hill, Monday, Feb. 25, 2019 in Washington. House Democrats have introduced a resolution to block the national emergency declaration that President Donald Trump issued last week to fund his long-sought wall along the U.S-Mexico border, setting up a fight that could result in Trump's first-ever veto. (AP Photo/Alex Brandon)

Senate Majority Leader Mitch McConnell, R-Ky., told reporters he can't say whether the Republican-controlled Senate will approve a resolution to block President Donald Trump's emergency declaration on immigration, during a news conference after a closed-door GOP meeting with Vice President Mike Pence, on Capitol Hill in Washington, Tuesday, Feb. 26, 2019. The House later voted to block President Trump's emergency declaration, a measure intended get him billions of extra dollars to build his border wall. (AP Photo/J. Scott Applewhite)

WASHINGTON (AP) — House Democrats have ignored a veto threat and passed legislation that would stymie President Donald Trump’s bid for billions of extra dollars for a U.S.-Mexico border wall. The move has escalated a clash over whether he has abused his powers to advance the signature pledge of his 2016 campaign.

The House’s 245-182 vote Tuesday to block Trump’s national emergency declaration fell well below the two-thirds majority that would be needed to override what would be the first veto of Trump’s presidency. Thirteen Republican backed the Democrats’ measure as top Republicans worked to keep defections as low as possible, wanting to avoid a tally suggesting that Trump’s hold on lawmakers was weakening.

The issue is now before the Republican-run Senate, where there already were enough GOP defections to edge the resolution to the brink of passage. Vice President Mike Pence used a lunch with Republican senators at the Capitol to try keeping them aboard, citing a crisis at the border, but there were no signs he had succeeded.

“I personally couldn’t handicap the outcome at this point,” said Senate Majority Leader Mitch McConnell, R-Ky., who plans a vote within the next three weeks. He even said Republicans remained uncertain about the legality of Trump’s move.

The showdown was forcing Republicans to cast uncomfortable votes pitting their support for a president popular with GOP voters against fears that his use of emergency powers would invite future Democratic presidents to do likewise.

House Republicans who joined all voting Democrats to support the resolution included moderates from competitive districts such as Fred Upton of Michigan and libertarian-leaning conservatives like Thomas Massie from Kentucky.

The White House, in a letter to lawmakers threatening a veto, said blocking the declaration would “undermine the administration’s ability to respond effectively to the ongoing crisis” at the border.

Republicans said Democrats were driven by politics and a desire to oppose Trump at every turn. They said Trump had authority to declare an emergency to protect the country and they defended his claims of a crisis.

“We are at war on the southern border with the drug cartels,” said Rep. Pete Olson, R-Texas.

Trump has asserted that barriers would stop drugs from Mexico from entering the U.S. In fact, government figures show that 90 percent of drugs intercepted from Mexico are caught at ports of entry, not remote areas where barriers would be constructed.

Democrats said Republicans repeatedly accused former President Barack Obama of flouting the Constitution, which gives Congress control over spending, but are ignoring Trump’s effort to do the same.

“Is your oath of office to Donald Trump, or is your oath of office to the Constitution?” House Speaker Nancy Pelosi, D-Calif., asked Republicans.

Trump’s push for the wall reflected a continuation of the anti-immigrant views that helped fuel his election, some Democrats said.

“Since when do we call human beings in need a national emergency?” said Mexican-born Rep. Jesus “Chuy” Garcia, D-Ill. “Is he running out of insults for people like me?”

Democrats said the crisis is a fiction manufactured by Trump to evade Congress’ vote this month to provide less than $1.4 billion for barrier construction. That was well below the $5.7 billion Trump demanded as he forced a record-setting 35-day federal shutdown.

“The president does not get to override Congress in a raucous temper tantrum over his inability to broker a deal” with lawmakers for more money, said Rep. Hank Johnson, D-Ga. Rep. Joaquin Castro, D-Texas, sponsor of the one-sentence measure blocking the declaration, called Trump’s move “constitutional vandalism.”

Trump used a 1976 law to declare a national emergency and ordered the shift of $3.6 billion from military construction projects to wall building. Citing other powers, he intends to shift an additional $3.1 billion from Defense Department anti-drug efforts and a fund that collects seized assets.

The money would be used to build steel barriers up to 30 feet tall and other barriers and for “law enforcement efforts,” said a White House statement.

In the Senate, three Republicans have said they will back Democrats’ drive to block the emergency declaration: Maine’s Susan Collins, Alaska’s Lisa Murkowski and North Carolina’s Thom Tillis. One more GOP defection would provide enough votes to approve the Democratic measure, assuming all Democrats and their independent allies back it.

Republicans said senators asked Pence numerous questions about which projects Trump would divert to pay for the wall, with Sen. Richard Shelby, R-Ala., saying the discussion was “hearty.” Shelby, chairman of the Senate Appropriations Committee, which controls spending. said the committee would quickly “backfill” money for military construction with other funds he did not identify.

“That issue won’t stay alive long,” Shelby told reporters.

Sen. John Thune of South Dakota, the chief GOP vote counter, said there may be GOP attempts to amend the House measure, saying Republicans “think they have amendments that would improve it.”

That suggests that McConnell may try finding a way to add language that could sink the Democratic resolution or, perhaps, make it more palatable for Republicans. The law requires the Senate to vote on a measure within 18 days of receiving it from the House.

Though presidents have declared 58 emergencies under the law, this is the first aimed at acquiring money for an item Congress has explicitly refused to finance, according to Elizabeth Goitein, co-director for national security at New York University Law School’s Brennan Center for Justice. This is also the first time Congress has cast votes on whether to annul an emergency declaration, she said.

Several lawsuits have been filed aimed at blocking the money, including by Democratic state attorneys general, and progressive and environmental groups. Those suits are likely to delay access to those funds for months or years.

Balderson Reaffirms Support for Strengthened Border Security, Rejects Termination of National Emergency

WASHINGTON – Congressman Troy Balderson (R-OH) today voted to reject Congressman Joaquin Castro’s (R-TX) resolution (H.J.Res.46) that would terminate the president’s declaration of a national emergency pursuant to the National Emergencies Act (50 U.S.C. 34 §1621), which authorizes such a declaration.

“I didn’t come to Washington to take meaningless votes, and that’s exactly what a ‘yes’ vote would have been,” said Congressman Balderson. “With the president’s promise to veto, this resolution is about political posturing, nothing more.”

Congressman Balderson recently voted in favor the bipartisan, bicameral agreement to strengthen border security in response to the swelling humanitarian crisis at the southern border of the United States, the premise of the president’s declaration of a national emergency. Last week, President Trump stated his intent to veto legislation designed to terminate said declaration.

Opinion: Congress Must Override Emergency Declaration

By Robert Weissman

InsideSources.com

President Donald Trump’s national emergency declaration to build a wall on the U.S.-Mexico border is an outrageous abuse of power, with dire implications for the future of our country. The idea that this president — or any president— is simply able to utter the magic word “emergency” and then circumvent the law and our Constitution is a profound threat to our democracy. It is imperative that Trump’s emergency declaration be overturned or invalidated.

Candidate Trump famously ran for office on the claim that he would build a wall on the border, paid for by Mexico. Mexico declined to accept the offer to pay for a wall it doesn’t want and rightfully perceives as a symbol of exclusion. So if Trump was to build the wall, it would have to be paid for with U.S. funds.

The U.S. Constitution is very clear about which branch of government has spending authority. It is the Congress. With Republicans in control of both houses of Congress during the first two years of his presidency, Trump made only a halfhearted effort to secure border wall funding, to no avail. And he appeared prepared to go along with a funding bill at the end of 2018 that again included no border wall funding.

However, Fox News commentators attacked him, and he suddenly decided that border wall funding was imperative. But Congress remained unalterably opposed. After a partial government shutdown that lasted more than a month, Trump again agreed to spending legislation that included no funding for the border wall.

More than two years into his presidency, and having been boxed into a corner by his Fox News allies, Trump then discovered a crisis at the border that he claimed necessitated invoking special emergency powers. Trump’s fake emergency has none of the aspects of urgency, suddenness or unexpectedness associated with genuine emergencies. As he said at the news conference announcing the emergency, “I didn’t need to do this.”

Nor are the factual premises of his claimed emergency true. Unauthorized immigration is not surging; in fact, it is down 75 percent or more from two decades earlier. Undocumented immigrants commit crimes at a lower rate than the general population. According to the Department of State, there is “no credible information that any member of a terrorist group has traveled through Mexico to gain access to the United States.” The Drug Enforcement Administration states that illegal drug traffic is channeled through legal ports of entry, not open border areas.

The only crisis at the border is the buildup in Mexico of families seeking asylum in the United States — but those people are seeking legal entry into the United States, and the crisis is due to the Trump administration’s refusal to afford them humane treatment.

No, Trump’s emergency declaration has nothing to do with any emergency. It is due entirely to his political problem of being unable to secure congressional appropriations to construct a needless wall that is a monument to racism and anti-immigrant sentiment more than anything.

It can’t be an emergency simply that the president is unable to win congressional approval of a campaign promise. And if it is, then presidents in the future will be able to invoke “emergency” with very few limits. Might this president declare “emergency” to deploy the military on the streets to maintain order and limit the right to protest? Might a future president declare “emergency” and thereby seek to address gun violence through unilateral action? It’s not hard to imagine such scenarios — which become much more plausible if Trump’s border wall emergency declaration is permitted to stand.

My organization, Public Citizen, and several others have sued to block the emergency declaration, claiming it exceeds the president’s power under the National Emergencies Act and violates the Constitution, which lodges spending power with the Congress. But we can’t count on the courts, which move slowly and historically are very deferential to presidential claims of national security.

Under the National Emergencies Act, Congress has the ability to pass a resolution of disapproval to override Trump’s declaration. The Democratic-controlled House of Representatives will almost surely pass such a resolution, and the Senate might as well. The Senate vote will test Republicans who have stated their opposition to executive overreach — will they stand for their stated principles, or will they simply accede to whatever Trump does?

To preserve Congress’ own power, but more important to protect our democracy and constitutional system, it is imperative that Congress act to override Trump’s unconstitutional emergency declaration.

ABOUT THE WRITER

Robert Weissman is the president of Public Citizen, a nonprofit consumer advocacy organization that champions the public interest in the halls of power. He wrote this for InsideSources.com.

The Conversation

Trump vs. Congress: The emergency declaration should not be resolved in court

Updated February 26, 2019

Author: William E. Nelson, Professor of Law, New York University

Disclosure statement: William E. Nelson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

President Donald Trump’s emergency declaration to build a border wall has provoked a constitutional confrontation with Congress.

Here is the background for understanding what’s at stake – beginning more than two centuries ago.

A major problem for the framers at the Constitutional Convention in 1787 was how to create a presidency powerful enough to protect the nation, yet constrained enough to prevent a president from becoming a dictator.

Ultimately, the president was given power to enforce the law, conduct foreign relations and command the armed forces. Congress retained most other key powers, including the power of the purse and the power to declare war.

The framers knew they could not predict all that the future would bring. So they left the precise boundaries between presidential and congressional power unclear. This imprecision in our checks and balances has served the nation well for 230 years because it provides the flexibility to govern while preventing tyranny.

As scholars of constitutional law and history, we believe that President Trump’s assertion of a national emergency to build a wall along the Mexican border and the lawsuits filed in response together threaten the very imprecision that has helped maintain constitutional checks and balances for more than two centuries.

To best maintain that balance, this confrontation should be resolved in the political realm, not in the courts.

The national emergency

But the lawsuits over the emergency declaration will probably reach the Supreme Court, and the court might well hold Trump’s emergency declaration unconstitutional.

That would set a precedent that would unduly limit national emergency power that some future president may need.

Alternatively, the court could decide the lawsuits in Trump’s favor. That would invert the entire constitutional order, where Congress appropriates and the president spends. It would undercut the checks and balances provided by the framers and lead to an incredibly powerful presidency.

Either result the court reaches would set a bad precedent.

Congress can avert this problem.

The 1976 National Emergencies Act gives Congress power to invalidate a president’s declaration of emergency by a resolution passed by simple majorities of both houses.

The House voted 245-182 on Tuesday to overturn President Trump’s national emergency declaration. Democrats were joined by more than a dozen Republicans in the vote. The Senate will now take up the measure, though a vote has not been scheduled.

White House adviser Stephen Miller has already suggested that Trump would veto any such resolution.

“He’s going to protect his national emergency declaration. Guaranteed,” Miller said on Fox News. Both the House and the Senate would then need two-thirds majorities to override his veto.

We believe that for Congress to protect the constitutional order, its members must muster the necessary two-thirds majority.

To the court

If Congress does not override the president’s veto, the lawsuits will probably go to the Supreme Court. The court’s decision has strong potential to do harm to the historic constitutional balance.

That balance was upheld by the Supreme Court in a crucial decision more than 50 years ago.

On April 9, 1952, President Truman declared a national emergency. In the midst of the Korean War, he seized the country’s steel mills on the eve of a nationwide strike because steel was necessary to make weapons. The steel companies immediately brought a lawsuit against the seizure in federal court.

Recognizing the importance of the issue, the Supreme Court heard arguments on May 12, and handed down its decision on June 2.

The court, in Youngstown Company v. Sawyer, rejected the president’s claim by a 6-3 majority.

Supreme Court Justice Robert Jackson wrote a crucial opinion about presidential emergency power. The Supreme Court, portrait by John C. Johnsen

Justice Robert Jackson wrote an opinion proclaiming a general approach to the balance of powers between Congress and the president, rather than a fixed rule.

Jackson declared that “when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.”

The president’s power, Jackson wrote, is in a “zone of twilight” when Congress has not spoken. When “the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”

President against Congress

President Trump is acting contrary to Congress’s will by appropriating money Congress has refused to appropriate. He signed a carefully constructed compromise budget bill passed by more than veto-proof two-thirds majorities in both houses. He accepted the US $1.375 billion that the bill gave him for a border wall.

He then broke the deal by declaring a national emergency to allocate an additional $6.7 billion to pay for border wall construction.

In two important cases, the Supreme Court has broadly prohibited Congress from giving any of its appropriations authority or responsibility to the president – even voluntarily.

Congress’s adoption of a joint resolution seeking to invalidate Trump’s emergency declaration – an explicit statement of congressional will – would provide conclusive evidence that would only strengthen the argument that the president is acting contrary to Congress’s will.

Preserving the constitutional balance

If the case gets to the Supreme Court, the president’s lawyers might argue that for Congress to decisively oppose an emergency declaration of the president, lawmakers must override his veto by a two-thirds vote.

Imposing such a veto override requirement, however, would eliminate the court’s role. That’s because a presidential declaration of emergency is immediately invalid if Congress overrides a presidential veto.

Two-thirds overrides are historically unlikely by Congress. And requiring a two-thirds vote would give a president who declares a national emergency virtually unlimited power to appropriate money to his or her heart’s content – perhaps hundreds of billions of dollars to address, for example, climate change by subsidizing construction of wind farms.

Requiring Congress to override a presidential veto that protects a presidential appropriation would turn the appropriations power and the Constitution’s checks and balances inside out.

Congress has already spoken through passing the spending bill and will be considering a resolution to invalidate the president’s declaration of emergency.

Such a resolution, even if vetoed by the president, places President Trump’s declaration in Justice Jackson’s category where presidential power “is at its lowest ebb.”

It also preserves the historic flexibility by allowing the court’s decision to give deference to the votes of Congress in cases of claimed emergencies.

This story has been updated to reflect the House vote on Feb. 26, 2019, on the resolution to overturn President Trump’s national emergency declaration.

John Attanasio, a legal scholar and author of “Politics and Capital: Auctioning the American Dream,” is a contributing author.

Comment

Gavin Moodie, Adjunct professor, RMIT University: I don’t understand why the Supreme Court which apparently protected the constitutional order in Youngstown Company v. Sawyer would not protect the constitutional order in any future case.

The human rights organization released a report Wednesday condemning the government of President Ivan Duque for promoting Gen. Nicasio de Jesus Martinez Espinel as army chief and promoting eight other officers linked to abuses.

The men are “credibly implicated” in what is known as the “false positive” scandal, in which security forces killed several thousand civilians during the height of the military’s offensive against leftist guerrillas and counted them as rebels to inflate combat deaths to obtain coveted bonuses, the group said.

“The Colombian government should be investigating officers credibly linked to extrajudicial executions, not appointing them to the army’s top command positions,” said Jose Miguel Vivanco, Americas director for Human Rights Watch.

He said their appointments send a troubling message to troops: “That engaging in these abuses may not be an obstacle for career success.”

A request for comment by The Associated Press to Martinez Espinel’s office was not immediately returned.

It’s not the first time Human Rights Watch has accused Colombia’s government of turning a blind eye to war-time violations in making army promotions. In 2017, the group expressed concern that four coronels and one general strongly linked to the extrajudicial killings were on a list of candidates for promotions.

Colombian courts have convicted hundreds of mostly low-ranking soldiers for their roles in the “false positive” killings but more senior army officers have largely escaped unscathed.

The country’s special peace tribunal is also reviewing the cases. The court was established following the signing of a 2016 peace deal with the former Revolutionary Armed Forces of Colombia to end Latin America’s longest-running conflict. Those who fully confess to any crimes are unlikely to spend any time in jail.

Human Rights Watch notes that Martinez Espinel was second-in-command of the 10th Brigade during years for which prosecutors have opened investigations into 23 killings.

The group said a document it had obtained indicates Martinez Espinel certified the payment of about $400 to an informant who provided information leading to “excellent results” in which two purported guerrillas were killed.

Human Rights Watch said courts concluded the two dead were Hermes Carillo, an indigenous civilian, and 13-year-old Nohemi Pacheco. Two soldiers and a former paramilitary were convicted in 2011 of abducting them from their home, murdering them and putting weapons on their bodies so that they appeared to be rebels killed in combat.

Under international law commanders can be held responsible for crimes carried out by subordinates that they knew about or should have known about.

House Speaker Nancy Pelosi of Calif., accompanied by Rep. Joaquin Castro, D-Texas, left, and others, speaks about a resolution to block President Donald Trump’s emergency border security declaration on Capitol Hill, Monday, Feb. 25, 2019 in Washington. House Democrats have introduced a resolution to block the national emergency declaration that President Donald Trump issued last week to fund his long-sought wall along the U.S-Mexico border, setting up a fight that could result in Trump’s first-ever veto. (AP Photo/Alex Brandon)

https://www.sunburynews.com/wp-content/uploads/sites/48/2019/02/web1_122404312-4ff258dc9d67408699206a83aa4e3058.jpgHouse Speaker Nancy Pelosi of Calif., accompanied by Rep. Joaquin Castro, D-Texas, left, and others, speaks about a resolution to block President Donald Trump’s emergency border security declaration on Capitol Hill, Monday, Feb. 25, 2019 in Washington. House Democrats have introduced a resolution to block the national emergency declaration that President Donald Trump issued last week to fund his long-sought wall along the U.S-Mexico border, setting up a fight that could result in Trump’s first-ever veto. (AP Photo/Alex Brandon)

Senate Majority Leader Mitch McConnell, R-Ky., told reporters he can’t say whether the Republican-controlled Senate will approve a resolution to block President Donald Trump’s emergency declaration on immigration, during a news conference after a closed-door GOP meeting with Vice President Mike Pence, on Capitol Hill in Washington, Tuesday, Feb. 26, 2019. The House later voted to block President Trump’s emergency declaration, a measure intended get him billions of extra dollars to build his border wall. (AP Photo/J. Scott Applewhite)

https://www.sunburynews.com/wp-content/uploads/sites/48/2019/02/web1_122404312-448b12ce7cbc4eb9a09692e75b7db163.jpgSenate Majority Leader Mitch McConnell, R-Ky., told reporters he can’t say whether the Republican-controlled Senate will approve a resolution to block President Donald Trump’s emergency declaration on immigration, during a news conference after a closed-door GOP meeting with Vice President Mike Pence, on Capitol Hill in Washington, Tuesday, Feb. 26, 2019. The House later voted to block President Trump’s emergency declaration, a measure intended get him billions of extra dollars to build his border wall. (AP Photo/J. Scott Applewhite)